Employers Can Use a Private Investigator to Verify Appropriate use of FMLA Leave

While many employees legitimately need and appropriately use Family and Medical Leave Act (FMLA) leave, there are some who abuse it. The FMLA itself does provide some limited recourse (mostly in terms of certifications and recertifications) for employers to question overall patterns of use. Yet, it does not really address specific incidents of intermittent leave use. So, what can employers do? One option is to hire a private investigator to monitor employees on FMLA leave.



In a recent case, an employee was granted intermittent FMLA leave to care for her son, who had several serious mental health conditions. The employee took significant and increasing amounts of FMLA leave each year. She also took other (non-FMLA) unscheduled days off that resulted in an attendance warning. After hearing from multiple co-workers that the employee might not be using FMLA leave appropriately, and realizing that many of her unscheduled FMLA days off were in conjunction with weekends or approved days off, the employer decided to hire a private investigator to follow her on three of her FMLA days.

Rather than caring for her son, the employee was seen in public running personal errands and engaging in several leisure activities. Not surprisingly, the employee was terminated for FMLA abuse, as confirmed by video surveillance tapes. In her suit against the employer, the employee argued that the employer-initiated surveillance, without a reasonable suspicion that she had abused FMLA, was illegal. The U.S. Court of Appeals for the Third Circuit treated that argument with skepticism, finding that “nothing in the FMLA prevents employers from monitoring employees’ activities while on FMLA leave to ensure that they do not abuse their leave.”

Although from a different circuit than Massachusetts or Connecticut, this case serves as a friendly reminder, to employers and employees alike, that an employer can hire a private investigator to confirm whether an employee is using FMLA leave appropriately. And if the employee is caught behaving in a manner that is clearly inconsistent with the stated reason for the FMLA leave, then they can take appropriate disciplinary action – up to and including termination.

If your business has any questions about this topic, or any other employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.